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The Birth and Growth 
of the Constitution of Alabama. 


AN ADDRESS 


DELIVERED BEFORE THE ALABAMA STATE BAR ASSOCIATION, 


AT MONTGOMERY, 


JUNE 15, 1900, 


BY 


WILLIAM H. THOMAS, 

u 


OF MONTGOMERY 






Gift 

Author 

(Person) 


< 

t 

< v 

«* l 
( 1 ( 












“The Birth and Growth of the Constitution 
of Alabama/' 


Gentlemen of the Alabama State Bar Association : 

When requested by your Executive Committee to pre¬ 
pare a paper on some subject for this Association, my 
mind adverted at once to the topic, “The Birth and 
Growth of the Constitution of Alabama.” It is then 
with no ordinary pride, though with many misgivings, 
that I ask this assembly of the bench and bar of the 
State, to go with me to the Bethlehem of our Constitu¬ 
tion ; and there, standing by its cradle, draw inspiration 
to encourage and guide, that we may see its full rounded 
beauty, that we may feel its blessed protection from the 
flood-tide of passion and prejudice, of avarice and op¬ 
pression, and to know its growth of past and future does 
but vindicate the wisdom of the hand and brain that so 
moulded and chrystalized the liberties of a great people, 
as to protect them, through the most extraordinary and 
varying conditions of nearly a century. 

Almost within the memory of men now living, at the 
beautiful city of Huntsville, nestling in the fertile val¬ 
ley of the magestic Tennessee, there came wise men from 
all sections of the Territory of Alabama, bringing as 
their precious offering, to this guardian of our sover¬ 
eign rights and liberties, their rich experience from the 
school of hardship and daring, guided by the wisdom 
and example of their mother States, lead on by the Star 
of Liberty, lighted in the souls of an Anglo-Saxon an- 



4 


cestrv, and with hearts tempered by the noble lessons 
given to humanity on Judean Hill and Gaililean plain, 
by the Divine Lawgiver. 

The Territory of Alabama having increased in popu¬ 
lation to 127,000, besides Indians, a petition from its in¬ 
habitants presented to the Senate was referred to an 
appropriate committee, and on Friday, December the 
18th, 1818, Mr. Tait, of Georgia, reported a bill to au¬ 
thorize the people of the Territory to adopt a constitu¬ 
tion and form a government, which was passed and ap¬ 
proved on March 2d, 1819. On the 5th day of July of 
that year the forty-four members selected from the 
twenty-two respective counties, met in convention, 
choosing as its president the Hon. John W. Walker, of 
Madison county, and remained in session until the 2d 
day of August. 

Of the personnel of the convention but little need be 
said. The State and Federal archives show, that from 
its members, came many to great public trust. It gave 
the State six Governors, six judges of the Supreme 
Court, and six United States Senators. But coming to 
lay the foundation of this great State, they were not 
tyros. Senator Walker had his experience in the legis¬ 
lature of the Mississippi Territory, to which he had 
been repeatedly chosen, and was also a member of the 
legislature of the Alabama territory, of which legisla¬ 
ture Senator Moore was Speaker, and in which Senator 
Clay served in a most satisfactory manner. In 1817 
came Governor Pickens, fresh from his service in more 
than one session of the Legislature of North Carolina, 
and was a member of Congress from his district, which 
he continued to represent until his removal to Alabama. 
But this “Old North State” gave to us another son, of 
whom she was justly proud, and he was received by our 


5 


people with becoming pride. He had served in the Leg¬ 
islative halls of North Carolina, had administered her 
laws, and at the age of twenty-four was elected to repre¬ 
sent the Wilmington district in the Congress of the United 
States, and which he entered simultaneously with Wil¬ 
liam Lowndes, Henry Clay, and John C. Calhoun. 
Twice elected, he served in Congress until 1816, when he 
was made secretary of legation to the American Em¬ 
bassy, first at Naples and then at St. Petersburg. In the 
winter of 1818 returning to the United States, he moved 
to the Territory of Alabama, making his home in the 
county of Dallas, which has since been, and is yet, the 
home of several personages who are near and dear to the 
hearts of our people, and who stand conspicuous in the 
annals of State and Federal government. And now every 
school boy remembers the name of William Rufus King, 
as being elected Vice President of the United States, but 
he should rather be remembered and revered by all Ala¬ 
bamians, as a member of the sub-committee of three, se¬ 
lected from the general committee of fifteen to reduce 
to form our first Constitution; and with his name will 
be associated that of Mr. C. C. Clay, who was chairman 
of the general committee to prepare and report a plan 
of government, and to which both these gentlemen sug¬ 
gested many of the main features of the Constitution as 
it was adopted. 

WHAT OF THE TIME THAT GAVE IT BIRTH? 

The five years next preceding the admission of Ala¬ 
bama into the Union was a most important period in the 
history of our country. The armies of Napoleon were 
trying to beat back the surging billows of English sol¬ 
diery, that were soon to dash over their grand empire, 
founded and sustained for fifteen years by the genius 


(j 


and commanding spirit of one man. England and 
France had vied with each other in disregarding our 
neutral rights, and in acts ruinous to the commerce of 
the United States. Now England by her a Orders in 
Council” forbade us traffic with her enemy, France, or 
with any French possessions. Then Napoleon retali¬ 
ated with his Decrees of Berlin and Milan, declaring all 
England in a state of blockade, prohibiting commerce 
and correspondence with her. Every effort was made 
to procure a withdrawal of these unjust “Orders and 
Decrees,” which were paralyzing every branch and root 
of American commerce. Mr. William R. King entered 
Congress at that time, and allied himself with Henry 
Clay, and John C. Calhoun, who, despite the efforts of 
Mr. Randolph, committed that body to the repulsion of 
aggression, to the maintainance of the rights of her citi¬ 
zens, and to the protection of the honor of our country. 
Napoleon modifies his decrees as to the United States, 
England still disregards, and the war of 1812 is de¬ 
clared. Then came the inciting of the man-of-the-forest; 
by British agents was stirred his fevered and inextin¬ 
guishable thirst for white men’s blood; and at Fort 
Mims was enacted the bloodiest massacre this country 
had ever known. General Jackson sweeping from 
the mountains of Tennessee down through the Territory 
of Alabama, her people rallying under his banners, 
avenged the ravages of the Red men, and hardens his 
sinews of war, to thereafter administer a crushing de¬ 
feat to Wellington’s well trained warriors giving again 
smiling peace and prosperity to our country. 

The effect of these conditions cannot be clearly seen 
in the constitution itself. Certainly the eye of a sym¬ 
pathizing nation was turned upon us, and meeting the 


7 


responsibilties of the hour, were developed and brought 
into public life men of sterling worth. The people then 
knew how to fill her Territorial Concil, as well as the 
Constitutional Convention with integrity and ability, 
and within two years after the declaration of peace, 
Congress authorized the Territory of Alabama with its 
present boundary, and two years thereafter she stood 
full-clad in the rights of statehood. 

THE FIRST CONSTITUTION, 

being in accord with the spirit of the time that brought 
it forth, does honor to those who gave it as their best 
heritage. In its preamble, with appropriate recitals, 
were placed the six foundation stones of “Union,” “Jus¬ 
tice,” “Domestic Tranquility,” “Common Defense,” 
“General Welfare,” and the security of the “Blessings of 
Liberty,” taken from the preamble to the “Constitution 
of the United States.” The living principles of the 
Magna Charta, set to republican forms and institutions, 
were incorporated in its “Declaration of Bights;” and it 
may be of interest to note that of the thirty “essential 
principles of liberty and free government” therein de¬ 
clared, the phraseology would indicate that thirteen 
had been taken from the bill of rights in the constitution 
of North Carolina, eleven from South Carolina, five 
from Virginia and Tennessee, and no trace of § 21 is 
found in either of these constitutions. But it must be 
remembered that the bill of rights of the several State 
Constitutions were influenced, more or less, by the 
Magna Charta, and this no doubt in a measure accounts 
for their great similarity. There is one section, how¬ 
ever, that may serve as a key to unlock the storehouse 
of the past, that we may know from whence comes, at 
least, our declaration of rights. I do not find in any of 
the constitutions named, nor in that of Georgia, a pro- 


8 


vision similar to our 21st declaration, which declares, 
“The estates of suicides shall descend or vest as in cases 
of natural death; if any person shall be killed by cas¬ 
ualty, there shall be no forfeiture by reason thereof.” 
It is true there was a statute in force at the time in Vir¬ 
ginia and Tennessee providing for the descent of the es¬ 
tates of suicides, but no mention is made in these stat¬ 
utes of the estates of those “killed by casualty.” And it is 
not probable that the convention, or the committee, in 
the twenty-seven days in which they were in session, 
should have examined the statutes of the several States, 
but that their attention was more probably directed to a 
careful study and adaptation to the needs of the times 
the more salient provisions of the constitutions of the 
contiguous States. It will be well to remember, at that 
time the constitutions of these sister States, with the ex¬ 
ception of Tennessee and Mississippi, were more than 
thirty years old, that of Tennessee was adopted twenty 
years before, and the Constitution of Mississippi was 
adopted about the time the Alabama Territory was 
created by Congress. 

What evidence then do we find that this last constitu¬ 
tion exercised an unusual influence on our first Consti¬ 
tution? There are thirty sections in the declaration of 
rights of each constitution, and twenty of which are 
identical in verbiage, four are similar except some slight 
changes in expression, and the other four are alike in 
substance. The arrangement of the several sections are, 
with two exceptions, identical, having the same num¬ 
bers ; adverting to § 21 providing for the descent of the 
estates of suicides and those killed by casualty, we find 
the same provision with the same wording, being § 21 in 
both instruments. The distribution of powers are the 
same; and a careful consideration of the several pro- 


9 


visions, made for the three distinct departments of gov¬ 
ernment, the conclusion is irresistible that the Constitu¬ 
tion of Mississippi was before the committee when they 
drew each section, for they literally adopted many of 
them, now wisely enlarging some, now carefully restrict¬ 
ing others. 

And being formerly a portion of the Mississippi Ter¬ 
ritory, subject to the same general conditions, confronted 
by the same puplic questions, represented by delegates 
that had served in territorial council with her public 
men, what was more natural than that we should have 
looked to Mississippi’s new constitution for light and 
guidance in the proper discharge of the duties imposed 
by that great public trust. 

They did more than adopt the Mississippi constitu¬ 
tion; they laid the foundation for a State University, 
provided for the promotion and encouragement of the 
arts, literature and sciences, and the protection and im¬ 
provement of the school lands granted by the United 
States; provided for the establishment of a banking sys¬ 
tem; for the humane treatment of slaves, and punish 
ment for its disregard; for a tenure of office that should 
not extend for a longer term than good behavior; for a 
speedy trial by an impartial jury of the county or dis¬ 
trict in which the offense shall have been committed; for 
the right to have a copy of the accusation with which 
one may be confronted; and the prohibition that attain¬ 
der shall not work corruption of blood, or forfeiture of 
estate; and they also declared that members of the Gen¬ 
eral Assembly should not be liable to answer for things 
spoken in debate, and should have the right to dissent 
and protest, and have his reasons entered in the jour¬ 
nals; they conferred the right of suffrage to all male 


10 


whites of the age of twenty-one and upwards; declared 
that those convicted of high crimes or misdemeanors 
should be disqualified from serving as jurors; and erect¬ 
ed the bulwark of protection for her citizens against con¬ 
fiscation, in declaring, that “all lands liable to taxation 
shall be taxed in proportion to their value.” And in giv¬ 
ing this Constitution to Alabama they recognized that 
the march of her civilization would not cease, and with 
her growth and progress, her organic law from time to 
time must be revised and amended, but that the mass of 
its features were secure, in the foundation they laid and 
would descend as a benediction to posterity. 

THE CONDITIONS OF 1860. 

There was another never-to-be-forgotten period in the 
history of our country. The panorama is spread out be¬ 
fore you; now gaze with me for a moment, through 
memories retrospect at the South before 1860. Behold 
a land, her fields waiving with the green corn of spring, 
making gladsome music to the rustle of the winds, with 
fields rolling as the seas, its spears of golden grain bow¬ 
ing at the approach of the gentle zephyrs, with fields 
clothed in a whiteness like that which greeted the fam¬ 
ished gaze of the Israelitish host when sweet manner 
from Heaven transformed the Oriental wilderness into 
an Eden. Yes, behold the South decked as the cerial 
goddess, wreathed in smiles of peace and prosperity, and 
singing the joyous psalms of local self-government. Be¬ 
hold Alabama, one of the fairest daughters of the 
South, clothed in her sunshine of peace, and regaled 
with her smiles of prosperity; the joys of the South were 
Alabama’s joys, her trials and misfortunes were our sor¬ 
rows. Then the Puritan in the winter of his discontent 
and intolerance, regarded like Cain of old, when seeing 


11 


we were blessed with the wealth of a nation and a genial 
clime, and that onr people were fast entering the front 
ranks of mystical science and elevating literature, art 
miraculous and genius divine. Her political horizon for 
half a century previous had continued to grow clearer 
with a brighter light, till now its beauty was marred by 
clouds of Northern discontent, which being collected 
grew black as death and not less fearfully ominous,— 
but the storm must come, and in 1861 the “electric spark 
leaped athwart our Southern Skies/’ and ere long the 
reverberations of the civil war were echoed around the 
world. And with such stirring political conditions 
pending, our second constitutional convention assembled 
at Montgomery on the 7th day of January, 1861, and 
the influence of the county of Dallas was again felt, by 
giving to the convention its president, Judge William 
M. Brooks. 

This convention fully realizing the great political 
crisis, they were called upon to meet, began their labors 
by “invoking the favor and guidance of Almighty God,” 
which prayer first found its jflace in the preamble of our 
constitution, where it has remained, not only in subse¬ 
quent constitutions, but in the hearts of our people. 
That the bulwark of our liberties had been builded high 
above avarice and oppression, and could withstand the 
beating, storming, seathing floods of prejudice and pas¬ 
sion, is evidenced by the fact that they permitted the 
“Declaration of Rights” to stand unchanged. But the 
coming of war with its horrors, its demoralizations and 
disregard of personal rights, did not cause them to over¬ 
look the interests of citizens; we find them forbidding 
the legislative department to enact special laws for the 
benefit of individuals or private corporations, “where 


12 


relief could be given by “court” or “general law;” for¬ 
bidding that the power of taxation shall be delegated to 
individuals and private corporations, and that “private 
property shall not be taken for private use, or for the use 
of corporations other than municipal, without the con¬ 
sent of the owner.” They provided for the election by 
the people of Judges for Circuit and Courts of Probate, 
struck out the provision in the former constitution, re¬ 
quiring that decree for divorce by a Court of Chancery, 
should not have effect until sanctioned by two-thirds of 
both houses of the General Assembly; revised the pro¬ 
vision for the establishment of State Banks, that had 
proven unsatisfactory; made preparation for the emer¬ 
gency of the time by allowing the raising of money on 
the credit of the State “for military defense against ac¬ 
tual or threatened invasion, rebellion or insurrection.” 
Boldly they met the question of slavery by adopting the 
provision that “no slave in this State shall be emanci¬ 
pated by any act done to take effect in this State, or any 
other country,” and at the same time provided for the 
humane treatment of slaves, for his impartial trial by 
jury; and yet within the capital of the Confederacy, 
with Fort Sumter signalling the onset, invoking all 
Christendon to witness a contest surpassed only by that 
of the overthrow of Milton’s Warring Angels, they could 
write their honest conviction into organic law, leaving 
it to the General Assembly, “to regulate or prevent the 
introduction of slaves into this State as merchandise,” 
and with the same hand write the ordinance of secession. 

But the God of Battle seemed to have ordained other¬ 
wise then that the sons of the Confederacy should be 
crowned with success. If the ringing yell of his onset, 
and the soul-stirring shouts of victory were echoed back 
and forth along the slopes of the Cumberland mountains 


13 


the ominous dirge of slowly retreating armies, was heard 
after the conflicts at Shiloh, Chattanooga, and Bowling 
Green, Ky.; and with the surrender of General Lee at 
Appomattox, our Southern system passed into history. 

Defeat was the test-tube in which the nobility of char¬ 
acter of the true-hearted Alabamian was tried. Return¬ 
ing from the hardships and misfortunes of war, to once- 
happy homes desolated, and to fertile fields laid waste, 
he took up the lines of duty as he found them, and set 
about the meeting of the greater responsibilities of the 
new conditions, to settle at once the great question, 
which by the dispensation of an All-wise Providence was 
left to each Southern State; and indulging the presump¬ 
tion and the hope, that passion and prejudice at the 
North would be dissipated, by the sunlight of a better 
judgment, the several States undertook the task that 
future generations must now settle. 

THE CONSTITUTIONS OF RECONSTRUCTION. 

That far-seeing statesman, Abraham Lincoln, appre¬ 
ciating the gravity of this Southern question, saw full 
well that all our material progress and good govern¬ 
ment, depended upon virtue and intelligent ruling in the 
South; that the arming of several million of emanci¬ 
pated slaves, who had never learned the first lesson of 
taking care of himself and family, with the rights of 
caring for the interests of others, was fraught with 
much mischief to both black and white men. It is said 
that Mr. Lincoln had conceived a plan of reconstruction, 
had even written a proclamation in accordance there¬ 
with, to bring back to the Union the Confederate States, 
with only such electors as were qualified under the laws 
of the several States in 1860; but unfortunately for him 


14 


who was master and him who had served, the assassin’s 
bullet struck down the genius and statesmanship re¬ 
quired to inaugurate a policy so at variance with the 
public mind at the North, leaving it to the unskilled 
hand of Mr. Johnson to try to manipulate this great plan 
as his own. And-the experience of thirty-live years de¬ 
monstrates the wisdom and political foresight of Mr. 
Lincoln, as to what was for the best interests, and what 
the true relation of former master and emancipated 
slave. 

The genius of statesmanship in Alabama, without 
hesitation, gave themselves to a right solution of the true 
political status of the time, and to that end, met in con¬ 
vention on December the 12th, 1865, selecting as its 
president Ex-Governor Benjamin Fitzpatrick. This con¬ 
vention gave the State 

THE CONSTITUTION OF 1865. 

Beginning their labors of the revision of our Constitu¬ 
tion, the first section of the declaration of rights, that 
had stood unchanged since it was first declared, when 
interrupted in the light of recent and most momentous 
events, had a new meaning. Alabama in 1865 could not 
say that “All freemen when they form a social compact, 
are equal in rights,” for it was not then the fact, and the 
assertion to the contrary of the fact in the amendments 
to the constitution of the United States, and a Kepubli- 
can sentiment thereto for thirty-five years, has not made 
it a fact, and never will. Would that Abraham Lincoln 
had not then died, that through his unprejudiced eye and 
fearless soul, his people might have looked and learned 
that it was not a fact that all fremen were equal in all 
rights. And with an unhesitating hand this convention 
struck that clause from our constitution, and made one 
of the qualifications of an elector that he should be a 


15 


“white person.” They required that the legislature at 
its next session, should enact laws prohibiting the inter¬ 
marriage of white persons with negroes or with persons 
with mixed blood, declaring such marriage null and 
void ab initio / and making the parties thereto subject to 
criminal prosecution; and to “Protect the freedmen in 
the enjoyment of all their rights of person and property, 
and to guard them and the State against any evils that 
may arise from their sudden emancipation.” 

But the one great political question did not over¬ 
shadow other required amendments; for the first time 
was placed in the bill of rights the provisions “that no 
person shall be debarred from prosecuting or defending, 
before any tribunal in this State, by himself or council, 
any civil cause to which he is a party;” that the rights 
of suffrage shall be protected by laws regulating elec¬ 
tions and prohibiting undue influence from power, brib- 
erty, tumult or other improper conduct;” declared that 
each law should embrace but one subject, which shall be 
described in the title, and that amendments “should be 
set forth at full length;” re-arranged the membership of 
both house and Senate; and provided for deductions in 
certain cases from salaries of public officers; and lastly 
declaring that no convention shall be held for the pur¬ 
pose of altering or amending the constitution of this 
State, unless the question of convention or no conven¬ 
tion shall be first submitted to a vote of the qualified 
electors of the State, and approved by a majority of the 
electors voting at said election,” thus putting the su¬ 
preme rights of the white man of Alabama, far above the 
low schemes and misrepresentations of designing and 
unprincipled men, above the treachery of the scalawag 
who was despised at home, and above the vandalism of 


16 


the carpet-bagger without home. And if Alabama had 
been allowed to come back into the Union, with this 
Constitution, the negro question for us had been settled. 

THE CONSTITUTION OF 1868. 

Mr. Johnson was unfortunate in trying to put upon 
Congress Mr. Licoln’s great plan; the idea of universal 
suffrage controlled that body after the elections of 1866, 
and then came reconstruction, with its scalawag treach¬ 
ery, and carpet-bag frauds. Under the reconstruction 
act to “provide for the more efficient government of the 
rebel states,” passed by Congress March 2, 1867, the 
constitutional convention assembled on March 5th, 1867, 
Judge E. W. Peck being its president. 

It might be interesting, but unprofitable, to compare 
the personnel of the last and former conventions with 
that of the convention which met in 1867. The years 
next succeeding the adoption of the constitution of 1868, 
would tend to show that those who made it, and their 
party in power, thought more of personal aggrandise¬ 
ment than for the general good; and the negro was made 
the willing instrument by which white supremacy was 
disregarded, by which intelligence and virtue was sup¬ 
planted by ignorance and avarice, which not only 
threatened the peace of home and the security of per¬ 
sonal right and private property, but the credit of the 
State and her public institutions trembled at the shock. 


17 


They declared “every male person born in the United 
States, and every male person who has been naturalized, 
* * * , twenty-one years old or upwards * * * ex¬ 
cept as hereinafter provided, shall be deemed an elector,” 
and in the exception thereinafter provided, was placed 
“such as may be disfranchised for participation in the 
rebellion,” and those refusing to take the oath of humil¬ 
iation required by the act of Congress. 

But this convention made other changes, some of 
which have been retained in our present constitution. 
They provided for the levy of a poll tax not to exceed 
$1.50 on each poll, to be applied exclusively to the public 
school funds; fixed the limit of taxation at “two per 
centum of the assessed value of such property,” pro¬ 
vided a “board of education,” for the establishment of 
free schools, in each school district, and for the govern¬ 
ment of the State University; provided for a . school 
fund, from the rent and proceeds of sale of school lands, 
from the “estates of all deceased persons who have died 
without leaving a will or heir,” and all monies paid in 
lieu of military duty, and “in addition to the amounts 
accruing from the above sources, one-fifth of the annual 
revenue of the State shall be devoted exclusively to the 
maintainance of public schools,” and gave the General 
Assembly the right to authorize school districts to levy 
a poll tax on the citizens of that district, for “the aid of 
the general school fund,” and required that a “specific 
annual tax” be levied “upon all railroad, navigation, 
banking and insurance corporations and upon all insur¬ 
ance and foreign banks and exchange agencies, and upon 
the profits of foreign bank bills issued in this State, and 
the proceeds therefrom be exclusively devoted to the 
maintainance of public schools.” They also provided 
for the establishment of an agricultural college, and 
the appropriation of the 240,000 acres of land donated 


18 


to the State for such a purpose by the act of Congress 
passed July 2, 1862; this was the founding of the Ala¬ 
bama Polytechnic Institute, which was located on Feb. 
26, 1872, at Auburn, now the pride of Alabama, and the 
peer of any similar institution in the South, and I might 
say in the United States. 

The exhausted conditions demanded that exemption 
laws be secured by constitutional provision, and for the 
first time the provision was therein made securing to 
any Resident of the States” a $1,000 of personal prop¬ 
erty of his selection, and the homestead not exceeding 
80 acres, “or in lieu thereof at the option of the owner, 
any lot * * * with the dwelling owned and occupied 
* * * not exceeding the value of $2,000,” also provided 
that the homestead of a family and of a widow, after 
the death of the owner, should be exempt from the pay¬ 
ment of debts during the minority of the children or life 
of the widow; and the separate estate of the wife was 
declared not subject to the payment of the husband’s 
debts. 

It is now a part of the history of our State that this 
constitution was submitted to the people for adoption, 
but was rejected by a majority of 8,754, which fact was 
duly reported by Major General Meade, but on 
June 25th, 1868, the Congress of the United States by 
the requisite majorities passed over the veto of Presi¬ 
dent Johnson an act to admit Alabama, with other 
Southern States to representation in Congress; but the 
constitutional convention of 1875, however, fixed the 
date of usurpation as the 13th day of July, 1868, when 
the defacto government of Alabama was organized. 


19 


THE PRESENT CONSTITUTION. 

Under tlie leadership of Senator George S. Houston, 
who won and proudly wore the sobriquet of the “bald 
eagle of the mountains,” was swept from our State the 
rule of the reconstructionists, re-establishing the white 
man’s party in Alabama. Then was the demand from 
all sections that their constitution should go, with the 
departing from power of its framers, and on March 19th, 
1875, was approved an act “To provide for the calling a 
convention to revise and amend the constitution of this 
State,” having the following preamble: “Whereas an 
experience of more than six years has shown that the 
present constitution of Alabama is grievously defective, 
and operates to the injury of the good people of this 
State, and imposed burdens oppressive to their industry 
and in restraint of the prosperity which they might ob¬ 
tain under the influence of a better constitution; 
* * * * ” and the act proceeds to call the convention 
to meet on the first Monday in September, 1875. Madi¬ 
son county having had the distinction to furnish the 
president of our first constitutional convention, gives 
his distinguished son, Hon. Leroy Pope Walker as presi¬ 
dent of our last, the convention of 1875. 

This convention was composed of the best men of our 
State, many of whom have filled places of importance 
in Federal and State government. Fitting indeed that 
one of its youngest members and the author of some of 
the wisest provisions of our present constitution, should 
be the nominee of our party for Governor, and by a con¬ 
vention declaring for a new constitution, and as the 
political horizon of the State was never brighter, Hon. 
William J. Samford will be elected Governor of Ala¬ 
bama by an overwhelming majority. 


20 


What of the constitution of 1875? To each citizen is 
guaranteed the rights and privileges enjoyed or pos¬ 
sessed by any other citizen. Again they adopted the 
provision from the constitution of 1861 as to religious 
liberty; declared the State shall not be made defendant 
in any court of law or equity; that the writ of habeas 
corpus shall not be suspended by the authorities of this 
State, denied the right of the legislature to make any 
irrevocable grants of special privilege or immunities; 
declared fully the right of eminent domain;” extended 
the right and protection to foreign residents “in respect 
to the possession, enjoyment and inheritance of prop¬ 
erty ;” declared the sole object “of government is to pro¬ 
tect the citizens in the enjoyment of life, liberty and 
property;” forbid an education and property qualifica¬ 
tion for suffrage or office or “any restraint upon the 
same on account of race, color, or previous condition of 
servitude.” Such were the changes made in the Declara¬ 
tion of Rights. 

The power of the legislative department was carefully 
defined; all bills were required to be referred to an ap¬ 
propriate committee, the vote on concurrence of amend¬ 
ments entered on the journals; forbade the “authorizing 
lotteries or gift enterprises for any purpose;’ or giving- 
extra compensation for public service after performance; 
and “providing that no special or local law shall be en¬ 
acted for the benefit of individuals or corporations in 
cases which are or can be provided for by general law;” 
* * * “the when” our Supreme Court held, was a ques¬ 
tion of legislative discretion, and this is why the local 
acts of the last legislature contain just 1,600 more pages 
than the General Acts. It was required that special 
laws “should be published in the locality affected 
for twenty days/’ but the Supreme Court also held if the 
journal was silent, notice would be presumed. So our 


21 


legislature continues to occupy their valuable time with 
local acts to incorporate Toad Vine or with the stock 
law for Sockapatoi, while a bill to relieve the difficulty 
in pleading in ejectment, notwithstanding the lament 
of more than ten years ago, for such relieC, by the late 
Chief Justice Stone, this general law, with many other 
much needed, dies in the hands of a committee, or fails 
to be called up in the hurry of what might appear to be 
more urgent local legislation. They provide for a change 
of venue; prohibited the investment of trust funds in 
“bonds or stocks” of any private corporation; that there 
should be no State office created for the inspection and 
measure of any merchandise manufacture or commod¬ 
ity; provides against corruption in procuring legisla¬ 
tion; exempt certain properties of the State, county, 
municipality, cemeteries, religious, school, agricultural 
and horticultural purposes from taxation; and requests 
that provisions should be made for the setting apart of 
exempt property. They declared that no appropriation 
be made for any charitable or educational institution 
not under the control of the State, nor should the State, 
“engage in internal improvement or lend money or its 
credit in aid of such * * * nor be interested in any private 
corporation or enterprise, or lend money or its credit to 
any individual association or corporation;” denied the 
right of any county, city, town or any other subdivision 
of the State to lend its credit or aid to any individual 
corporation or association * * * * or hold stocks or 
bonds in the same; thus guarding public treasuries from 
the designs of the unscrupulous; and for all time to come 
they declared the policy of this State should be for hon¬ 
esty and public confidence in that there should “be no law 
of this State imparing the obligation of contracts by 
destroying or imparing the remedy for their enforce¬ 
ment.” 


22 


EXEMPTION. 

The right to waive the exemptions provided by the 
constitution was declared, but in this they have practi¬ 
cally denied the protection intended ; this right is good 
in theory, but not in practice. The person desiring 
credit is required to waive his exemptions, and if he 
should desire other credit, it is denied by the first credi¬ 
tor, for he has extended all the credit he wishes, and by 
subsequent creditors, because they know their disadvan¬ 
tage to the first creditor. The debtor realizing his 
credit is seriously impaired, if .not destroyed when he 
has waived it, grows careless; and if not, finds it diffi¬ 
cult to protect what credit he may have left. If this 
right had not been given, his resources, ambition and 
real worth, would appeal to those to whom he may ap¬ 
ply for help. Nor could he be so easily imposed upon, 
for his property credit would not be in the hands of any 
one creditor, but in himself for the equal benefit of all 
with whom, through his ability, integrity, and industry, 
he may be enabled to deal. 

TAXATION. 

The right of taxation is a limitation, not a grant of 
power. When its levy is in excess of the legitimate needs 
of a proper management of the municipality, county or 
state, it becomes oppression; it is human to use that 
which is in hand, first for necessities, then for comfort 
and convenience, when these are had, the temptation for 
extravagance is present. Recognizing that what the 
Bill of Rights is to personal liberty, the limitation of the 
power of taxation is to the right and enjoyment of pri¬ 
vate property, the framers of our constitution have set 
about this power limitations, which wisely construed 
will prevent oppression. 


23 


§ 1, Art. XI. “All taxes levied on property in this 
State shall be assessed in exact proportion to the value 
of such property. * * * *” 

§ 4. “The General Assembly shall not have the 
power to levy in any one year, a greater rate of taxation 
than tliree-fourtlis of one per centum on the value of 
the taxable property within the State.” 

§ 6. “The property of private corporations, associa¬ 
tions and individuals in this State shall forever be taxed 
at the same rate * *” 

The reading of this last section suggests the inquiry, 
at what rate shall property of private corporations, as¬ 
sociations and individuals be taxed forever? It 
answers itself, “at the same rate.” And what rate is 
this? We find in §1 and §4 the answer; all property of 
a class or species regardless of the owner, shall not only 
be “forever taxed at the same rate,” but “in exact pro¬ 
portion to the value of such property,” not to exceed in 
any one year a greater rate of taxation than “three- 
fourths of one per centum on the value of taxable prop¬ 
erty.” What then is the value of taxable property? 
This is answered by all political economists, as well as 
by the concensus of general experience, that the use and 
ability to produce, furnishes the test of the “exact value 
of property.” The limit of one-half of one per centum 
on the value of taxable property, was also declared suf¬ 
ficient for county and municipal purposes. With an ex¬ 
perience of thirty years, notwithstanding the phenomi- 
nal growth of material wealth in this State, these limita¬ 
tions have been found ample to afford the revenue, and 
are not oppressive to the citizen; I apprehend, therefore, 
there need be no fear that the people will allow the rate 
of taxation to be changed in a new constitution. 


24 


EDUCATION. 

The system of education was revised, separate schools 
provided for children of African descent; and if all edu¬ 
cational interests could be so removed from all practi¬ 
cal politics, as not to be affected by its ebb and flow, it 
would be wise. Our two great institutions of learning 
must be placed beyond even the temptation of reward of 
politics in its management. I cannot think this will be 
overlooked by our next convention. 

CORPORATIONS. 

A new industrial era began to dawn upon the State, 
and provision was made for the formation and regula¬ 
tion of corporations; and now when a new constitution is 
mentioned some people take a chill, for fear some much 
needed protection or long delayed right may be secured 
to corporations. I have faith in the honesty and 
strength of character of Alabama manhood, and know 
that no constitutional convention will be controlled by 
any set of individuals, or corporate influences, and that 
they will make a constitution of, and for, the rights and 
liberties of her people, and at the same time show a just 
and true regard for the protection of the millions of 
wealth that flows continually within her borders. 

THE TWENTIETH CENTURY, 

Constitutional Convention, we will call it, will have 
more difficult questions for consideration than have been 
considered in the past. The material conditions have 
so changed, that action must now be taken on questions 
that were not living issues, or if so, would not have been 
undertaken thirty years ago. Combinations of capital 
with its powerful and far reaching results, coiling 


25 


around the nation, crushing individual industry, or 
vampire-like sucking the life blood out of the citizen, 
and combinations of labor making unjust and unreas¬ 
onable demands, menacing personal liberty and the 
right of the use and enjoyment of private property, were 
not corroding the body politic of 1875; nor could we 
then afford to, openly admit that the Republican frauds 
of 1874 were eradicated largely by the disfranchisement 
in fact of the negro vote, and that we now propose to dis¬ 
franchise the unworthy by law? The convention of 1875 
had gone far enough for the time, to strike out the ob¬ 
noxious disqualifications of electors, that were in 1868 
placed as the galling yoke of the victor on the bowed 
neck of the vanquished. 

SUFFRAGE. 

But now the first and great question is, the revision of 
the qualifications for suffrage and office, so as not to of¬ 
fend the provisions of the Federal constitution, and at 
the same time do legally what self-protection, what the 
love of home and family, the good of society, the de¬ 
mands of good government, have required that our citi¬ 
zenship do in fact. If Louisiana and Mississippi, North 
and South Carolina have statesmanship to disfranchise, 
if you please to call it, and not offend the XVth Amend¬ 
ment, I can trust the statesmanship of Alabama. As 
well said in this city a short while ago by the distin¬ 
guished orator, Hon. Bourke Cochran, this is distinctly 
a Southern question, and I can tell him to say to the 
North, they may pass resolutions to investigate election 
methods at the South, but we will do that which is for 
the general good. And if the right of franchise is not a 
natural right, but a privilege rather than a right, and 
the Supreme Court of the United States is committed 


26 


to this view by a long line of well reasoned authorities, 
we can disfranchise those classes unworthy of suffrage, 
by disqualifications placed in our organic law. 

I will not assume the roll of a prophet, but our next 
constitutional convention, wishing to place and perpetu¬ 
ate the franchise in the hands of virtue and intelligence, 
a synonym for white supremacy, they will in all probil- 
ity adopt some such provision as follows: 

Every male citizen of this State and of the United 
States, native born or naturalized, who is twenty-one 
years old and upwards, not laboring under the disabili¬ 
ties named in the constitution, and possessing the quali¬ 
fications required by it, shall be an elector, and shall be 
entitled to vote at any election by the people except as 
hereinafter provided: 

1st. He shall have been a bona fide resident of this 
State at least two years immediately preceding the elec¬ 
tion at which he offers to vote. 

2nd. He shall have resided in the county one year 
and in the precinct or ward for six months immediately 
preceding the election at which he offers to vote, pro¬ 
vided, that the General Assembly shall proscribe a longer 
or shorter residence in any precinct in any county, or in 
any ward, in any incorporated city or town having a 
population of more than five thousand inhabitants, but 
in no case to be less than three months; and provided, 
that ministers of the gospel in charge of any organized 
church shall be entitled to vote after six months’ resi¬ 
dence in the county if otherwise qualified. 

3rd. He shall have paid all taxes, including poll tax, 
assessed against him, and which he has had an oppor¬ 
tunity of paying according to law, for the two preceding 
years, and shall produce to the officers holding the elec¬ 
tion satisfactory evidence that he lias paid said taxes, 
more than four months preceding the election at which 


27 


he offers to vote; provided that no compulsory process 
shall issue to compel the payment of poll tax, nor shall 
the same be a lien on other assessed property. 

4th. He shall be able to read any section of the con¬ 
stitution of this State, and of the United States, or he 
shall be able to understand the same when read to him, 
and give a reasonable interpretation thereof. 

5th. He shall have been at the time he offers to vote, 
legally enrolled as a registered voter, in accordance with 
the provision of this constitution, and according to the 
laws which may be enacted by the General Assembly 
regulating the registration of voters, provided, that no 
person shall be entitled to registration who is not other¬ 
wise qualified as a voter, according to the provisions of 
this constitution. 

6th. No male person who was on Jan. 1st, 1867, or at 
any date prior thereto, entitled to vote under the consti¬ 
tution or statutes of any State of the United States, 
wherein he then resided, and no lineal descendant of any 
such person not less than twenty-one years of age at the 
date of the adoption of this constitution, or no male 
person who was in the service on either side of the Civil 
War between the States, and no lineal descendant of 
any such person, not less than twenty-one years of age 
at the date of the adoption of this constitution, and no 
male person of foreign birth, who was naturalized prior 
to the adoption of this constitution, shall be denied the 
right to register and vote in this state by reason of his 
failure to possess the prescribed education or property 
qualifications, or other qualifications for registration 
that may be required by the General Assembly. 

The following classes shall not be permitted to regis¬ 
ter, vote or hold offices: 

1st. Those who shall have been convicted of treason, 
embezzlement of public funds, malfeasance in office, lar- 


28 


ceny, bribery or other crime punishable by imprison¬ 
ment in the penitentiary, assaulting his wife or daugh¬ 
ter, false pretenses, receiving stolen goods, or violation 
of the election laws; provided, the Governor may in his 
pardon remove such disqualifications if he sees fit. 

2d. Those who are idiots or insane. 

3d. No soldier, sailor or marine that may be sta¬ 
tioned in this State by the Federal government. 

It will be observed I make the usual requirements for 
payment of taxes, and ability to read and understand 
the constitution, common to the constitutions of the 
four States that have recently amended their constitu¬ 
tions. That with North Carolina the question of regis¬ 
tration is given to the legislature, but with the limita¬ 
tion that the right may be restricted and not enlarged. 
This affords an opportunity to meet any future condi¬ 
tion that should present itself. But if the whole question 
of the regulation of the elective franchise were given the 
General Assembly, frequent contests thereof would 
create a spirit of irritation and unrest, inimicable to the 
public welfare. The general excepting clause of all who 
were qualified electors before January 1st, 1867, and 
the descendants of such persons, must be extended to 
those who were engaged on both sides of the Civil War, 
and their descendants, for it will then embrace 
a class from all nationalities, of white and black men. 
Will not such a provision stand the consideration of the 
highest court in this country? It would not exclude the 
whole class of any race or color or nationality. Can it 
offend the letter or spirit of the Federal Constitution 
when the restriction is not placed on “race, color or pre¬ 
vious conditions of servitude ?’* I am persuaded that 
that such a provision is the true solution of the ques¬ 
tions of “negro rule” and “ballot box frauds” in the 
South. And when this is done, by the great law of the 


29 


survival of the fittest, the question will in a large meas¬ 
ure settle itself. Those who are impatient under the 
restriction will emigrate, and those who remain will no 
longer have a feeling of denied rights, but will be con¬ 
tent and the more diligently apply himself to financial 
success. 


IN CONCLUSION, 

I will remark, with the calling of our Twentieth Century 
Convention, what a fitting opportunity to quench forever 
the fires of political difference, if such a flame still con¬ 
sumes the heart of any white man in Alabama; to extend 
a more cordial hand of welcome to those, who, for a little 
while, cast at the feet of the one party in this State, the 
gauge of war, to swear over the grave of a divided past, 
and over the cradle of a united future, to array a united 
manly effort against the enemies of home and State, 
never more to be separated by “financial issues/’ or 
“populism,” and be prevented from marching to the 
polls in a solid phalanx under the white man’s flag. 

The growth of our constitution into a new and more 
perfect constitution of Alabama, an Isiah or an Elijah, 
is not required to tell her future brightness. Even now 
I see her seated on a throne of success, upon her brow 
is religions crown resplendent with the many gems of 
liberal education, her robe is of spotless truth, bound 
about the waist with national fidelity; encased are her 
feet in slippers that tread the paths of rectitude; at 
her right hand sits her officials and counsellors, soon to 
be presided over by a Governor, whose motto is, “The 
peoples’ rights to be respected and protected,” while at 
her feet is a surging multitude, striving, toiling and 
prospering, pilgrims of every nationality, protected in 
the right of personal liberty and the enjoyment of the 


30 


proceeds of lionest toil. This is but a negative of Ala¬ 
bama’s future picture; we all are the artists to assist 
in its development. And may the God of Abraham, and 
the God of Isaac, and the God of Jacob, watch lovingly 
over our labors. 


12 6 


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